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Evaluation of legal capacity by doctors and lawyers: the need for collaborative assessment

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Legal and medical professionals are increasingly being asked to assess the capacity of individuals to make wills (an individual’s testamentary capacity), enduring powers of attorney (EPAs) and advance health directives (AHDs), as well as other legal instruments. Australian society is ageing and consequently the number, as well as the complexity, of assessments being conducted is increasing.

A range of medical conditions may interfere with, or eliminate, a person’s legal capacity to execute a will, EPA or AHD. Collaboration between legal and medical professionals in the assessment process is therefore particularly important. Miscommunication and misunderstanding occur between legal and medical professionals about the roles and responsibilities of each when conducting such assessments — is it legal or medical capacity being assessed?1 — which can be exacerbated by inadequate professional education. Given that loss of legal capacity has significant consequences, assessment needs to be consistent and transparent. Currently, no nationally recognised system for this process exists in Australia.2 At the moment, there is an unsatisfactory, ad hoc implementation of various methods tailored to suit individual practitioners, be they legal or medical. This is legally, medically and ethically concerning.3

This article considers the challenges…